Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Wednesday, 11 September 1985
Page: 455


The PRESIDENT —On 29 May 1985 the Senate passed a resolution directing that counsel be briefed to seek leave to appear on behalf of the President of the Senate at the trials of His Honour Mr Justice Murphy and His Honour Judge Foord to make submissions as to the law of parliamentary privilege as it may become applicable to those proceedings. The resolution also required counsel to seek leave to withdraw thereafter and take no further part in the trial proceedings. In accordance with the resolution, counsel were briefed and successfully sought leave to appear at a pre-trial hearing of the Supreme Court of New South Wales on 3 and 4 June 1985 in the proceedings relating to Mr Justice Murphy. On my instructions, counsel made oral submissions to the effect that the law of parliamentary privilege prevented the cross-examination of witnesses or the accused on evidence which they gave to parliamentary committees. Counsel for the prosecution and the defence made contrary submissions on the matter.

On 5 June 1985 the judge in the proceedings, His Honour Mr Justice Cantor, gave a judgment to the effect that the cross-examination of a person on evidence given by that person before a parliamentary committee does not necessarily breach article 9 of the Bill of Rights in its application to the Houses of the Australian Parliament under section 49 of the Constitution. Subsequently, witnesses and the accused were cross-examined on oral and documentary evidence which they gave to Senate committees, including evidence given in camera and not published, and submissions were made by counsel on that cross-examination. Bearing in mind the Senate's resolution, I nonetheless gave consideration to having Mr Justice Cantor's judgment tested in the High Court of Australia, but decided not to do so because of the disruption which would be caused to the trial of Mr Justice Murphy, which was to proceed immediately after the pre-trial hearing.

Certain questions of law arising in the trial were reserved for decision by the High Court, including questions relating to the cross-examination of the accused on a written statement which he submitted to a Senate committee. I arranged for counsel to seek leave to appear before the High Court in relation to the relevant questions, but the High Court considered only two constitutional questions and remitted all other questions of law to the Supreme Court of New South Wales. On 5 September 1985, in accordance with the Senate's resolution, counsel briefed on my instructions successfully sought leave to appear at a pre-trial hearing in the Supreme Court of New South Wales in the proceedings relating to Judge Foord, and made written and oral submissions to the effect that Mr Justice Cantor's judgment was not in accordance with the proper interpretation of the Bill of Rights and should not be followed. The judge in those proceedings, His Honour Mr Justice Maxwell, without giving reasons, indicated that he intended to follow Mr Justice Cantor's judgment.

I now present to the Senate the following documents: Transcript of the proceedings in the Supreme Court of New South Wales on 3 and 4 June 1985; judgment of Mr Justice Cantor, 5 June 1985; written submissions made on my instructions to the Supreme Court of New South Wales on 5 September 1985; and the transcript of the proceedings in the Supreme Court of New South Wales on 5 September 1985. Copies of these documents are available from the Senate Records Office. It should be noted that the court transcripts contain inaccuracies. I commend the reading of these documents to honourable senators, particularly the written submissions which were made on my instructions on 5 September.

I draw the attention of the Senate to Mr Justice Cantor's judgment, particularly because, if it is accepted, it will mean that persons who give evidence before, or make submissions to, parliamentary committees may be cross-examined on that evidence in subsequent court proceedings, which until now has been thought to be prohibited by the law of parliamentary privilege. The judgment and the subsequent conduct of the proceedings before Mr Justice Cantor also appear to indicate that evidence or documents given by a person to a parliamentary committee, including unpublished evidence given during in camera proceedings, may subsequently be used against that person through cross-examination in criminal proceedings in which that person is the defendant. This would appear to be a complete repudiation of article 9 of the Bill of Rights. Since the judgment draws no distinction between witnesses and members of parliament, and as there is no rationale suggested in the judgment for any such distinction, it would also appear that members of parliament could be cross-examined in court on their parliamentary speeches and could have their parliamentary speeches used against them through cross-examination in subsequent criminal proceedings. It could be that even their contributions to in camera meetings of committees might be so treated. I therefore regard the judgment as having a serious impact on the freedom of speech in Parliament, a view with which Mr Speaker has indicated his agreement. For that reason I felt that I should make this report to the Senate. I will be giving consideration to what further action might be taken in relation to this matter.